United States District Court, W.D. Oklahoma
L. RUSSELL, UNITED STATES DISTRICT JUDGE.
the Court is the Report and Recommendation of United States
Magistrate Judge Bernard M. Jones recommending reversal and
remand of the Commissioner's decision to deny
Plaintiff's disability insurance benefits
(“DIB”). Doc. 29. Defendant objected, arguing
that substantial evidence in the record supports the
Administrative Law Judge's (“ALJ”) “not
disabled” finding under Title II of the Social Security
Act. Doc. 30. Pursuant to 28 U.S.C. § 636(b)(1)(B), the
Court reviews the Report and Recommendation de novo in light
of Defendant's objection and ADOPTS it in its entirety.
The decision of the Social Security Administration
(“SSA”) is REVERSED and remanded to the
Commissioner for further proceedings consistent with this
issued a decision on March 24th, 2015, that
Plaintiff is not disabled and therefore not entitled to DIB.
Doc. 14-2. The SSA outlines a five-step disability
evaluation. 20 C.F.R. 404.1520(a); see Fischer-Ross v.
Barnhart, 431 F.3d 729, 731 (10th Cir. 2005). The ALJ
first found that Plaintiff has not engaged in
“substantial gainful activity since January 23, 2012.
Doc. 14-2, at 18. The second and third steps entailed ALJ
analysis of SSA-defined “severe impairments.”
Id. at 18-20. The ALJ found severe multiple
sclerosis (“MS”), degenerative disc disease of
lumbar spine, disc bulge of thoracic and cervical spine, and
obesity. Id. Notably, the ALJ relied on
Plaintiff's Function Report (Administrative Record
(“AR”) 237), a third party Function Report (AR
221), and Dr. Brooks' testimony (AR 41) to determine that
Plaintiff's anxiety and depression did not cause more
than a “minimal limitation” insufficient to
constitute a “severe mental impairment.”
the ALJ found Plaintiff possessed the residual function
capacity (“RFC”) to “perform a wide range
of light and full range of sedentary work.” Doc. 14-2,
at 20-23. In reaching this conclusion, the ALJ considered
Plaintiff's claims and testimony, Dr. Valluck's
medical report (AR 345), Dr. Brooks' testimony (AR 41),
Dr. Zubair's report (AR 614, 784), the SSM St. Anthony
Hospital Reports (AR 662, 823), Dr. Salrin's Physical
Medical Source statement (AR 707), the Affordable Quality
Care report (AR 466), and the Allied Physicians Group report
(AR 495). Lastly, the ALJ concluded that Plaintiff is not
disabled because her RFC does not prevent her from continuing
past work as a “tax clerk, front office clerk, and
collections representative.” Doc. 14-2, at 23. The
Commissioner thereafter adopted the ALJ's finding
following Plaintiff's unsuccessful appeal.
review, Judge Jones rejected Plaintiff's claim of ALJ
error regarding manipulative limitations from the RFC, but
found reversible error for two related, but distinct,
reasons: First, the ALJ failed to discuss Dr. Cruse's
opinion regarding Plaintiff's anxiety and depression.
Second, the ALJ failed to assess these
“nonsevere” mental impairments in making her RFC
determination. Doc. 14-2, at 19.
Cruse performed Plaintiff's mental status exam on July
19th, 2011. AR 429. His relevant conclusions-which
the parties agree the ALJ failed to consider-follow:
Mental / emotional disorders include: anxiety and depression.
. . . Occupational functioning has been severely impaired for
one year and five months. Interpersonal functioning has been
moderately impaired. Personal functioning, as reflected in
activities of daily living, is limited to a moderately
degree. . . . Treatment has produced moderate or partial
return to functioning. Observations and responses in
today's interview are believed to be of good reliability
and validity. . . . Prognosis is judged to be fair. There
appears to be a moderate probability that treatment will
result in substantial improvement over the next twelve
months. . . . Treatment with counseling and psychotropic
medication are recommended.
objects to Judge Jones's Report and
Recommendation. Doc. 30. She argues that the ALJ's
omission was harmless error because Dr. Cruse examined
Plaintiff before the relevant disability period and Dr.
Cruse's opinion comported with the remaining record.
Plaintiff responds that Defendant materially distorts Dr.
Cruse's prognosis and that the timing of Dr. Cruse's
report is not determinative.
Standard of Review
Court reviews the Commissioner's decision to determine
whether substantial evidence in the record supports the
ALJ's factual findings and whether the ALJ applied the
correct legal standards. Andrade v. Sec'y of Health
& Human Servs., 985 F.2d 1045, 1047 (10th Cir.
1993). Substantial evidence is “such relevant evidence
as a reasonable mind might accept as adequate to support a
conclusion, ” Fowler v. Bowen, 876 F.2d 1451,
1453 (10th Cir. 1989), and “requires more than a
scintilla, but less than a preponderance.” Lax v.
Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007).
“Evidence is not substantial if it is overwhelmed by
other evidence in the record or constitutes mere
conclusion.” Grogan v. Barnhart, 399 F.3d
1257, 1261-62 (10th Cir. 2005). While the Court will
“consider whether the ALJ followed the specific rules
of law that must be followed in weighing particular types of
evidence in disability cases . . . [the Court] will not
reweigh the evidence or substitute [its] judgment for the
Commissioner's.” Hackett v. Barnhart, 395
F.3d 1168, 1172 (10th Cir. 2005).
committed two errors that are not harmless. First, she failed
to consider Dr. Cruse's medical report at Step 2 of her
decision. Second, she ...